Jordan v. State Agency of Transp., No. 96-196

• Docket Nº: No. 96-196
• Citation: 166 Vt. 509, 702 A.2d 58
• Case Date: July 03, 1997
• Court: United States State Supreme Court of Vermont

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702 A.2d 58 166 Vt. 509 Kevin and Andrew JORDAN
v.
STATE of Vermont, AGENCY OF TRANSPORTATION. No. 96-196. Supreme Court of Vermont. July 3, 1997.

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Colleen Conti, Underhill, for plaintiffs-appellants.

Jeffrey L. Amestoy, Attorney General, and Scott A. Whitted, Assistant Attorney General, Montpelier, for defendant-appellee.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, ¹ C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Kevin and Andrew Jordan appeal an order of Franklin Superior Court dismissing their petition for review of an Agency of Transportation (AOT) fuel-tax assessment. The Jordans argue that the court erred in ruling that they failed to exhaust their administrative remedies because they did not attend the administrative hearing where their appeal was initially considered. We agree that failure to attend an administrative proceeding does not necessarily preclude judicial review of an agency action, and remand for a de novo hearing on the fuel-tax assessment.

The basic facts are not in dispute. In August 1995, AOT informed the Jordans by mail that a business audit indicated they owed $15,179 in fuel taxes, interest, and penalties. The letter included notice that administrative appeal was available but must be requested within thirty days or they would lose their right to judicial review. The Jordans submitted a timely notice of appeal to AOT, which scheduled a hearing for September 1995. Following two postponements at the Jordans' request, a hearing was scheduled for November 28, 1995. The Jordans failed to appear on the day of the hearing, and on December 1, 1995, AOT informed the Jordans that it had found the amount of the assessment, interest, and penalty to be proper.

In January 1996, the Jordans filed a petition for de novo hearing of the assessment in Franklin Superior Court pursuant to 23 V.S.A. § 3023. Two months later the court

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granted AOT's motion to dismiss, holding that the Jordans had failed to fully exhaust their administrative remedies because they had not attended the November hearing, and consequently had lost their right to judicial review of the assessment. This appeal followed.

A party's failure to exhaust administrative remedies permits a court to dismiss the action for lack of subject matter jurisdiction. DiLaura v. Power Auth. of N.Y., 982 F.2d 73, 79 (2d Cir.1992); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1350, at 194-95 (1990). Dismissal for lack of subject matter jurisdiction, see V.R.C.P. 12(b)(1), is reviewed de novo, with all uncontroverted factual allegations of the complaint accepted as true and construed in the light most favorable to the nonmoving party. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989); cf. Reynolds v. Sullivan, 136 Vt. 1, 3, 383 A.2d 609, 611 (1978) (similar standard applies to motion for judgment on pleadings under V.R.C.P. 12(c)).

This Court has consistently held that when administrative remedies are established by statute or regulation, a party must pursue, or "exhaust," all such remedies before turning to the courts for relief. In re D.A. Assocs., 150 Vt. 18, 20, 547 A.2d 1325, 1326 (1988). This long-settled rule of judicial administration serves the dual purposes of protecting the authority of the administrative agency and promoting judicial efficiency. McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 1086-87, 117 L.Ed.2d 291 (1992). Therefore, where an agency has jurisdiction to decide an issue, a court will not interfere with the agency's decision-making unless and until all administrative remedies have been invoked, In re R.L., 163 Vt. 168, 171, 657 A.2d 180, 183 (1995), except where the party qualifies for an exemption. See 2 C. Koch, Administrative Law and Practice § 10.24 (Supp.1996) (presumption is that exhaustion is required; burden rests on party seeking to bypass administrative process to show that exception applies); see, e.g., Stone v. Errecart, 165 Vt. 1, 4, 675 A.2d 1322, 1325 (1996) (futility exception has no place in face of clear legislative command that exhaustion is required).

The Jordans contend the trial court erred in concluding that they failed to exhaust their administrative remedies. We agree. A person against whom diesel fuel taxes have been assessed may request appeal of that assessment to the Commissioner of Motor Vehicles within fifteen days of mailing of the notice. 23 V.S.A. § 3019. Failure to request appeal within that period results in the assessment becoming final. Id. But a person who timely appeals the assessment and who remains dissatisfied with the result may have the "decision, order or finding of the commissioner ... reviewed under Rule 75 of the Vermont Rules of Civil Procedure" in superior court. Id. § 3023(a). Judicial review is de novo, id., and "shall be the exclusive remedy available ... for review of a decision of the commissioner." Id. § 3023(b).

The record indicates that the Jordans fully complied with these procedures. On August 4, 1995, AOT mailed the Jordans a letter listing the amount of the assessment and notifying them of their right to administrative appeal. ² Twelve days later, the Jordans returned a letter expressing disagreement with the assessment and requesting an appeal. A hearing was scheduled for November 28, 1995. Although the Jordans failed to

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attend the hearing, a decision was issued on December 1, 1995, stating that "[t]he hearing finds that the assessment, interest and penalty [were] proper" and noting that a revised bill showing the amount now due would be mailed separately. Having requested and received administrative review of the assessment, the Jordans were within their statutory rights to seek de novo review of the Commissioner's December 1995 decision in superior court pursuant to 23 V.S.A. § 3023.

AOT argues, however, that the Jordans' failure to appear at the November hearing resulted in the administrative equivalent of a default judgment, and that they therefore failed to complete the administrative appeal process. By implying that a default judgment would fail to satisfy the exhaustion requirement, AOT raises the related, but distinct, issue of ripeness of an action for judicial review. With limited exceptions, it is our practice to decline to judge a case piecemeal and to require that the order appealed from be final. In re Pelham North, Inc., 154 Vt. 651, 652, 578 A.2d 124, 124 (1990); see 2 Koch, supra, § 10.31, at 194 (judicial review available only after agency has spoken decisively on issue and when judicial involvement in dispute will settle it). "Finality insures that the case has reached an administrative conclusion and any decision a court reaches will be authoritative." 2 Koch, supra, § 10.31, at 194 (footnote omitted). Therefore, finality is required even where the authorizing statute does not expressly so state. See Carolina Power & Light Co. v. United States Dep't of Labor, 43 F.3d 912, 914 (4th Cir.1995) (judicial review limited to final orders, although statute broadly phrased to allow appeal of "order[s]"). Thus, even though the statute does not expressly limit judicial review to final agency actions, but rather allows review of "any decision, order or finding of the commissioner," 23 V.S.A. § 3023(a), we agree with AOT that the trial court has jurisdiction...